While each contracting agency of the Government is primarily responsible for obtaining compliance with the rules, regulations and orders respecting its contracts, Executive Order 11246 makes the Secretary of Labor responsible for the administration of the Order pertaining to government contracts and authorizes him to adopt the necessary rules and regulations and issue the necessary orders.
Among the sanctions and penalties provided by Executive Order 11246 are those that authorize the Secretary of Labor or the Government contracting agency to recommend to the Department of Justice that there be instituted appropriate civil and criminal proceedings, including actions under Title VII of the Civil Rights Act of 1964.
Pursuant to the authority vested in him by Executive Order 11246, the Secretary of Labor adopted and promulgated detailed regulations to achieve the aims of equal employment opportunities for employees of and applicants for employment with Government contractors. With certain exceptions the Secretary of Labor delegated authority and assigned responsibility to the Director, Office of Federal Contract Compliance, Department of Labor. The regulations, currently effective, are set forth at length at 41 Code of Federal Regulations, Chapter 60.
Pertinent to plaintiffs' claims asserted here are those provisions of the regulations that establish a procedure for complaining of discriminatory practices by a Government contractor. Any employee of or applicant for employment with any such contractor may file in writing a complaint of alleged discrimination in violation of the equal opportunity clause. The complaint is to be filed either by the employee or applicant or by an authorized representative within 180 days of the alleged discrimination unless the time is extended by the contracting agency or Director upon good cause shown. The complaint is to be filed with the agency or the Director and is to include, among other things, the names of the complainant and contractor and a description of the alleged discriminatory acts. If the information in the complaint is not complete, the agency or Director is required to promptly seek the needed information. 41 C.F.R. §§ 60-1.21-60-1.23.
Upon the filing of a complaint the regulations require a prompt investigation and the development of a complete case record of the charges made by the employee or applicant for employment. This is done by the contracting agency or a compliance agency designated by the Director. If the investigation discloses no violation of the equal opportunity clause of the contract, the investigating agency reports such findings to the Director who may review those findings and thereafter request further investigation or he may undertake any investigation as he may deem appropriate. If the complaint investigation indicates a violation of the equal opportunity clause, the matter is to be resolved by informal means wherever possible. If the indicated violation cannot be resolved by informal means, the contractor is afforded an opportunity for a hearing. Where the hearing results in a final decision that the equal opportunity clause was violated, the Director, or the contracting agency with the approval of the Director, may cause the contract to be cancelled, terminated or suspended, debar a contractor from further contracts or subcontracts, or may impose such other sanctions as are authorized by Executive Order 11246. 41 C.F.R. §§ 60-1.24, 60-1.26, 60-1.27.
Thus, the ultimate relief plaintiffs seek by this action, contract cancellation and debarment, is available to them in proper cases under the provisions of Executive Order 11246 and the Secretary's implementing regulations.
Nowhere do plaintiffs assert that anyone of them has availed himself of the procedure provided in the implementation of Executive Order 11246.
Rather the plaintiffs assert that for several reasons the doctrine of exhaustion of administrative remedies is not applicable.
1. Plaintiffs contend that the Supreme Court in recent decisions has established that the exhaustion doctrine is inapplicable when redress is sought in Federal courts for violations of constitutional rights by government officials. But, as the intervenor-defendants point out, the cases plaintiffs rely on involve state or other nonfederal officials and were brought against such officials under the Civil Rights Act. In McNeese v. Board of Education, 373 U.S. 668, 672, 10 L. Ed. 2d 622, 83 S. Ct. 1433 (1963), the Court held that relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provides a remedy since the federal remedy is supplementary to the state remedy. The latter remedy the Supreme Court has said in Monroe v. Pape, 365 U.S. 167, 183, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), "need not be first sought and refused before the federal one is invoked." And in Damico v. California, 389 U.S. 416, 19 L. Ed. 2d 647, 88 S. Ct. 526 (1967), the Court made clear that the state remedy included administrative remedies.
But the instant action is not one brought under the Civil Rights Act against state officials. Defendants here are Federal officers. The administrative remedies under consideration here are Federal remedies which if invoked in a proper case would give the plaintiffs, or such of them as could show they were aggrieved, the relief they seek in this action. Those remedies were designed for that very purpose.
2. Plaintiffs contend that individual complainants are not entitled to trigger and participate in administrative proceedings under Executive Order 11246. While the Order itself is silent as to the procedure for making a complaint by an individual employee or applicant for employment, the regulations, as has been noted, are not. Provision has been made for an individual to file a complaint and if his charge demonstrates a violation of the equal opportunity clause which cannot be resolved informally, he may participate in the Administrative hearing upon a showing that he has an interest in the proceedings and may contribute materially to the proper disposition thereof. 41 C.F.R. § 60-1.26(b).
Rosado v. Wyman, 397 U.S. 397, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970), cited by plaintiffs, is inapposite. There the Department of Health, Education and Welfare had "no procedures whereby welfare recipients may trigger and participate in the Department's review of state welfare programs." (397 U.S. at 406.) Such is not the case here.
3. Plaintiffs assert that administrative processes have been exhausted as to four of the companies which employ some of the plaintiffs and that an administrative decision on the same issues with respect to the other eight employing companies would be idle.
As is made known by the Wilks and Jarrett affidavits attached to defendants' motion to dismiss, compliance investigations have been made and negotiations and agreements have been entered into with four paper and pulp companies. Those companies are International Paper Company, American Can Company, Kimberly Clark Corporation and Scott Paper Company.
But plaintiffs assert that the compliance agreements entered into by International Paper Company, American Can Company and Scott Paper Company have not eliminated the discriminatory practices about which they complain. Assuming that such practices continue notwithstanding the agreements to eliminate them, the administrative procedures provided by Executive Order 11246 and the Secretary's regulations provide means for the adversely affected plaintiff or plaintiffs to bring such violations to the attention of the Government. If the charges after hearing are substantiated the Government agencies involved have the means of remedying the conditions, even to the extent of cancelling the contracts and declaring the offending companies ineligible for further Government contracts.
As to the remaining eight paper and pulp companies, about which plaintiffs state it would be futile to proceed administratively, it is to be noted that the affidavits of Wilks and Jarrett state that compliance investigations and discussions are presently being conducted with respect to five of those companies. They are Container Corporation, Allied Paper, Inc., St. Regis Paper Company, Union Camp Corporation and West Virginia Pulp and Paper Company. Whether the results of the current investigations will be to plaintiffs' satisfaction remains to be seen. But if any affected plaintiff should not be satisfied he can utilize the available administrative procedure.
So far as appears from the Wilks and Jarrett affidavits compliance investigations have not been and are not now being made of the remaining companies about which plaintiffs complain. As to those companies complaints may be filed by the affected employees in the manner provided by the Secretary's regulations.
4. Finally plaintiffs argue that administrative inaction and delay in enforcement of the requirements of Executive Order 11246 relieves them of the necessity of exhausting the administrative remedies available to them. The essence of plaintiffs' assertion is that the Government agencies have not acted with the swiftness plaintiffs desire. It ill becomes these plaintiffs to be critical of the Government in not acting to eliminate the violations which they claim have directly and adversely affected them when they have done nothing to bring such charges to the attention of the agencies. Their complaints, filed as provided by the Secretary's regulations, would focus on the particular violations which would be charged. Until at least some effort is made by the plaintiffs to invoke their available administrative remedies, it can hardly be said that they are exhausted instead of the remedies.
And Executive Order 11246 is not the only remedy available to plaintiffs. The Congress in 1964 enacted a Civil Rights Act, 42 U.S.C. § 2000e et seq. Title VII of that Act has for its purpose the protection of equal employment opportunities. It declares that it shall be an unlawful employment practice for an employer "to fail or refuse to hire or to discharge * * * or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, * * * or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a).
By Title VII an Equal Employment Opportunity Commission was created. 42 U.S.C. § 2000e-4. With that Commission an aggrieved employee or applicant for employment may file a complaint, with the assistance of the Commission if necessary. Where the complaint charges that an employer has engaged in an unlawful employment practice, the employer will be furnished with a copy of the complaint and the Commission will investigate such charges. If as a result of such investigation it is concluded that there is reasonable cause to believe that the charge is true, the Commission is to endeavor to eliminate the unlawful employment practice by informal methods of conference, conciliation and persuasion. If within the thirty days prescribed by the Act (which may be extended by the Commission to not more than sixty days)
the Commission is unable to obtain voluntary compliance, it is to so notify the aggrieved employee or applicant for employment. Within thirty days thereafter an action may be instituted by such aggrieved person against the employer in a United States District Court. If the court finds that the employer has intentionally engaged in or is intentionally engaging in the unlawful employment practice charged in the complaint, it may enjoin the defendant from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay. 42 U.S.C. § 2000e-5.
Pursuant to the authority conferred by the Act, the Commission has issued detailed procedural regulations to carry out the provisions of Title VII. 29 C.F.R. Ch. XIV, Part 1601.
Two of the named plaintiffs have heretofore filed complaints with the Commission. They are Ezekiel Harrison and Edward C. English. Those complaints are still pending and have been for more than sixty days.
Both Harrison and English at any time may demand and obtain notices from the Commission of the latter's inability to obtain voluntary compliance. 29 C.F.R. § 1601.25a. Armed with such notices Harrison and English may institute civil actions against their respective employers.
Any of the named plaintiffs, or any other employee or applicant for employment of the paper and pulp companies, is provided with a procedure under Title VII of the Civil Rights Act of 1964 to file charges of unlawful employment practices with the Commission and with the courts where voluntary compliance cannot be obtained by the Commission. And Title VII actions may be class actions under Rule 23, Fed. R. Civ. P., without all of the plaintiffs being required to first file complaints with the Commission. Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 499 (5 Cir. 1968), Miller v. International Paper Company, 408 F.2d 283, 284-285 (5 Cir. 1969). Thus Harrison and English can file class actions and, if the charges they make can be supported, obtain full relief from the claimed unlawful employment practices.
If the other named plaintiffs pursued the remedies provided by the Civil Rights Act and implementing regulations, they also could file class actions and, therefore, all of the complained-of paper and pulp companies could be sued directly in class actions.
Where the charges were proven in such actions complete relief could be granted the class plaintiffs.
But plaintiffs are not content to utilize the readily available Title VII remedy. Rather they complain that it would place an intolerable burden on them and their present counsel to conduct separate actions against the complained-of eleven paper and pulp companies and their sixteen plants.
With respect to the matter of counsel it is to be noted that Title VII of the Civil Rights Act of 1964 provides that District Courts may appoint counsel for plaintiffs and may authorize the commencement of actions without the payment of fees, costs, or security. 42 U.S.C. § 2000e-5(e). And in actions in which plaintiffs prevail, the court or courts, in its or their discretion, may allow them attorneys' fees as a part of the costs, with the Commission and the United States being liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k). Thus, if plaintiffs' present counsel found it impossible to conduct the several actions against the paper and pulp companies other counsel could be appointed and their fees paid as costs providing the plaintiffs prevailed.
As to the burden the plaintiffs claim would be placed on them by the dismissal of this action, it is to be noted again that not one has asserted he filed a complaint under the procedure established to accomplish the purposes of Executive Order 11246 and only two have filed complaints with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964. Their inaction in this respect does not result from any oversight. They have made very clear in their memorandum in opposition to the motions to dismiss, as has their counsel in oral argument, that they have no interest in pursuing the remedies provided them by the executive and legislative branches of the Government. Rather it is their expressed desire that this Court so construe the due process clause of the Fifth Amendment as requiring the Secretary of Defense and the Administrator of General Services Administration to cancel existing contracts with the paper and pulp companies and to refrain from awarding those companies further contracts. That this Court will not do.
As has been said "there is great emphasis in Title VII on private settlement and the elimination of unfair practices without litigation." Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 498 (5 Cir. 1968). It was for that reason the Commission was created and its conciliatory functions defined. Only when voluntary compliance cannot be obtained, or a reasonable period of time has elapsed for obtaining such compliance, may the aggrieved person bring suit. Such was the clear intent of Congress in enacting Title VII. Not to dismiss this action would require this Court to disregard that intent. Even to avoid a multiplicity of suits by plaintiffs furnishes no justification for this Court to entertain this action. Particularly is this true when to do so would require it to involve itself with a dubious Constitutional issue. Traditionally courts avoid Constitutional issues, especially when other adequate remedies as here are available. Aircraft and Diesel Corp. v. Hirsch, 331 U.S. 752, 91 L. Ed. 1796, 67 S. Ct. 1493 (1947).
For the reasons stated herein defendants' and intervenor-defendants' motions to dismiss are granted.